CAS 2015/A/4007 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF), Sergey Bakulin & Russian Anti-Doping Agency (RUSADA), award of 25 April 2016 (operative award of 24 March 2016)
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April 25, 2016
- Athletics (race walking)
- Doping (Athlete’s Biological Passport, ABP)
- Athlete Biological Passport as evidence
- Principle of lex mitior
- Concept of fairness
- Principle of proportionality
1. An athlete who, based on his Athlete Biological Passport (ABP), is found guilty of an anti-doping rule violation and criticises the reliability of the ABP but does not challenge the respective decision accepts the conclusion that his ABP constituted sufficient evidence to ground the conclusion that he committed an anti-doping rule violation. Conversely, the criticism as to the reliability of the ABP can be understood as aiming to show that insufficient evidence has been submitted to prove that some of the samples included in the ABP of the athlete are abnormal, and therefore to allow the conclusion, from the athlete’s perspective, that they should not be taken into account when determining whether the results achieved in the period surrounding those disputed samples have to be disqualified. In the same way, the athlete may invoke any alleged unreliability of the ABP method as a factor to be taken into account when assessing, in general terms, the “fairness” of the disqualification (or of the non-disqualification) of his results.
2. When applying the lex mitior principle in case of anti-doping rule violations, either the set of rules applicable at the time when the anti-doping rule violation was committed or otherwise the rules applicable at the time the decision is adopted are to be determined as the applicable set of rules most favourable to the accused, without picking individual provisions from each. The hearing body cannot undertake a rule-by-rule comparison of the two systems, picking the most favourable rule of each system.
3. The concept of “fairness” is a broad one, covering a number of elements that the deciding body can take into account in its decision not to disqualify some results. In the past CAS panels took into account a number of factors, such as the nature and severity of the infringement, the length of time between the anti-doping rule violation, the result to be disqualified and the disciplinary decision, the presence of negative tests between the anti-doping rule violation and the competition at which the result to be disqualified was achieved, and the effect of the infringement on the result at stake. It is not a single element that is decisive alone: an overall evaluation of them is necessary.
4. The principle of proportionality implies that there must be a reasonable balance between the kind of misconduct and the sanction, and in particular that (i) the measure taken by the governing body can achieve the envisaged goal, (ii) the measure taken by the governing body is necessary to reach the envisaged goal, and (iii) the constraints on the affected person resulting from the measure are justified by the overall interest of achieving the envisaged goal. In other words, to be proportionate, a measure must not exceed what is reasonably required in the search for a legitimate objective.
Mr Sergey Bakulin is an International Level Russian Athlete specializing in the 50 km race walk event
The object of the dispute between the parties is a portion of a decision issued by a disciplinary committee of RUSADA in an anti-doping case brought against the Athlete, based on the irregularities observed between February 2011 and August 2012 in the Athlete's Biological Passport (ABP) concerning the Athlete.
The International Association of Athletics Federations (IAAF) started the present arbitration claiming that the applicable anti-doping rules adopted by IAAF (the IAAF ADR) to implement the provisions of the World Anti-Doping Code had not been correctly applied on a specific point (disqualification of results).
On 20 January 2015 the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency (RUSADA) decided to impose a 3 year and 2 month period of ineligibility on the Athlete including disqualification of his results obtained between January 2011 and June 2012 based on the atypical profile in his ABP.
Hereafter in March 2015 the IAAF appealed 6 similar decisions of RUSADA, including the Athlete’s case, with the Court of Arbitation for Sport (CAS).
The IAAF requested the Panel to disqualify all the Athlete’s results obtained between 25 February 2011 and 24 December 2012. This requested disqualification is including the competitive results of the 2011 World Championships and the London 2012 Olympic Games which were not disqualified by RUSADA in its decision of 20 January 2015.
The IAAF argued that the “fairness exception” set forth in Article 40.9 of the 2015 IAAF ADR should not apply to the Athlete’s case considering the Athlete’s serious aggravated doping violation and based on the irregularities in his ABP.
ARAF requested the Panel to dismiss the IAAF appeal and finds the RUSADA decision of 20 August 2009 to be grounded, well-founded and reasonable. The Athlete argued that there is no evidence that he committed an anti-doping rule violation at the events in question and the obtained results should not be disqualified considering the principle of fairness.
RUSADA contended that they applied the principle of fairness in their decision according to the IAAF Rules. The Athlete was already sanctioned for 5 years due he was provisionally suspended and sanctioned since December 2012. It asserted that it is not possible to use the data of samples collected in 2006-2009 as claim that the Athlete was engaged in a doping scheme over long period.
The selective disqualification of results decided by the Disciplinary Anti-Doping Committee was fair both for the Athlete and the clean athletes who competed against his. Also the decision of the Committee to consider only a selection of samples of the Athlete’s ABP was in line with the applicable standard of evidence.
The main issue that this Panel has to decide is whether the Decision was correct in disqualifying only some of the results achieved by the Athlete in the period following the date on which the anti-doping rule violation was found to have been committed and the beginning of the period of (provisional) suspension/ineligibility.
In this connection, the parties brought some other incidental issues to the attention of the Panel during the course of the arbitration: the identification of the rules which have to be applied, and, if relevant, the meaning and conditions of application of the "fairness exception" mentioned at Article 40.9 of the 2015 IAAF ADR.
After an overall evaluation of all relevant elements, the Panel concludes that all competitive results obtained by the Athlete must be disqualified, with all resulting consequences in accordance with Article 40.9 of the 2009 IAAF Rules. No reasons of fairness can be found not to disqualify them.
Therefore the Court of Arbitration for Sport decides on 25 April 2016 that:
1.) The appeal filed on 25 March 2015 by the International Association of Athletics Federations (IAAF) against the decision issued on 20 January 2015 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is granted.
2.) Point 3 of the decision issued on 20 January 2015 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is partially modified.
3.) All competitive results obtained by Mr Sergey Bakulin from 25 February 2011 to 24 December 2012 are disqualified, with all resulting consequences in accordance with Article 40.9 of the IAAF Anti-Doping Rules.
4.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne in their entirely by the All Russia Athletics Federation, Mr Sergey Bakulin and the Russian Anti-Doping Agency. The All Russia Athletics Federation, Mr Sergey Bakulin and the Russian Anti-Doping Agency are therefore ordered to reimburse the International Association of Athletics Federations (IAAF) for any amount advanced for the costs of arbitration in the following proportions: 25% by the All Russia Athletics Federation, 25% by Mr Sergey Bakulin, and 50% by the Russian Anti-Doping Agency.
5.) The All Russia Athletics Federation, Mr Sergey Bakulin and the Russian Anti-Doping Agency shall pay to the International Association of Athletics Federations (IAAF) an aggregate amount of CHF 9,000 (nine thousand Swiss Francs) as a contribution toward the costs it has sustained in connection with these arbitration proceedings, as follows: CHF 2,000 (two thousand Swiss Francs) by the All Russia Athletics Federation, CHF 5,000 (five thousand Swiss Francs) by Mr Sergey Bakulin, and CHF 2,000 (two thousand Swiss Francs) by the Russian Anti-Doping Agency.
6.) The All Russia Athletics Federation, Mr Sergey Bakulin and the Russian Anti-Doping Agency shall be jointly liable for the payments to be made to the International Association of Athletics Federations (IAAF) in accordance with points 4 and 5 above.
7.) All other motions or prayers for relief are dismissed.
